違反行政義務行為之處罰競合關係研究

The Analysis of the Concurrent Criteria against the Violations to Administrative Duties

系所名稱：法律學系一般生組 學位別：博士 畢業學年：100年 指導教授：陳春生 違反行政法上義務行為，其法律效果即處罰手段，大別之有「行政罰」與「刑事罰」制裁措施之不同。另關於違反行政法上義務行為，是否均屬所謂的「行政不法行為」，而非犯罪行為，以及如何界定違反行政法上義務行為，究應採取「行政罰」或「刑事罰」作為制裁手段，牽涉到的是一個「刑事罰與行政罰界限」的立法爭議，學理上始終無一套具體之區分標準可供參考，這是首先應予釐清之問題。又違反行政法上義務行為，究應處以行政罰或刑罰，其區別標準，大法官向來慣以「立法自由形成」一語交待。但立法者在制定法律時，固然有其規範之自由形成空間，然此一立法自由形成空間是否並無限制，在行政罰與刑事罰的這個問題上界限何在，自也是應予釐清的問題。

The punishments for the violation of administrative duties include two visible constituent elements, namely the administrative sanction and the criminal penalty. It has been noted that Justice of the Constitutional Court adopts the view that whether an act in violation of a duty under administrative law should be liable to administrative penalty or criminal punishment is an issue within the scope of power of legislative discretion and is subject to determination by the legislature by taking into account such factors as the nature of the event, the degree of detriment to legal rights and interests, and the effects of the control that the legislature intends to achieve ; however ,the concrete and clear examination standard of review has not been settled. Firstly ,the purpose of chapter two of this thesis is to clarify the boundary issues of administrative sanction and criminal penalty.The concurrence of administrative sanction and criminal penalty happens when administrative duty is violated. Moreover, the concurrence of the so-called administrative sanction laws happens pursuant to article 2 of the administrative sanction law. In analyzing the above issues mentioned, “no double sanction principle” on which chapter three intends, by referring to many kinds of punishments, to deliberate.The question of either single behavior or several behaviors are conducted to violate administrative duties reflects not only the number of punishments but also the constitutional declaration regarded as “no double sanction principle”. The concurrences of many kinds of punishments exist in the Social Order Maintenance Act, Criminal Code, Administrative Penalty Act, Public Functionaries Discipline Act, and the Administrative Execution Act. Moreover, the chapter five to eight of this paper argues the adoption of these laws under the principle of no double sanction.The dispute of whether the guilty of the sentence, the defer-prosecution, and the defer-prosecution with conditionality are punishment measures or not exists when administrative sanctions are applied simultaneously. The supplementary sanctions are used, moreover, in the Act Governing the Punishment of Violation of Road Traffic Regulations. The two situations mentioned above, regarding the principle of no double sanction, are discussed in chapter nine. Finally, the conclusion and suggestions are offered in chapter ten.